On The Spirit Of The Rule Of Law In Contemporary China

During 30 years of reform and opening-up, the construction of the rule of law in China has made the brilliant achievements, Chinese characteristic socialist rule of law has been forming, legal consciousness and the ideas of the rule of law have increased gradually, and the idea of the socialist rule of law has been formed and set up initially. While affirming the achievements, we must clearly realize the deficiencies of the rule of law in China. The spirit of the rule of law in China is not yet ripe because of the historical and practical and other reasons, seriously hampering the process of building the rule of law in China. By hackling the evolved process of the spirit of the rule of law in Contemporary China, based on understanding the development condition of the spirit of the rule of law in China, the article explores the feasible approach of carrying forward and cultivating the spirit of Chinese characteristic socialist rule of law. In addition to the introduction and conclusion, the main body of the dissertation is composed by four parts.ChapterⅡdiscusses the connotation and characteristic of the spirit of the rule of law. Based on introducing and commenting on Chinese scholars'concept about the spirit of the rule of law, the dissertation carries out the semantic analysis of the spirit of the rule of law. Adhering to Marxism standpoint, the author thinks that the spirit of the rule of law is the product of human practice of the rule of law, and it is the subjective outcome about the essence and value of the rule of law and so on which benefit healthy development of human society. At the same time, the article compares and analyses the spirit of the rule of law, the spirit of law, the ideas of the rule of law, the consciousness of the rule of law, and the idea of the rule of law. The connotation of the spirit of law is different from the connotation of the spirit of the rule of law, and the scope of the spirit of law is more widespread, which is likely to contain the spirit of the rule of law, as well as exclude it. Of course, there are close links between the two, and the traditional law in China emphasizes the rule of men and excludes the spirit of the rule of law, but the spirit of the rule of law is also interlinked with the spirit of modern law. Law in the rule of law is consequently in accord with the spirit of modern law, which is transformed into the spirit of the rule of law surely in the practice of the rule of law, at the same time, the molding of the spirit of modern law is also inseparable from carrying forward and cultivating of the spirit of the rule of law. The ideas of the rule of law, the idea of the rule of law and the spirit of the rule of law are the product of understanding the rule of law, they belong to the category of the consciousness of the rule of law, and the ideas of the rule of law including both the rational ingredient and the perceptual ingredient are the preliminary shape of the consciousness of the rule of law; the idea of the rule of law is the advanced shape of the consciousness of the rule of law, and it is the rational stage of the consciousness of the rule of law; the spirit of the rule of law is the transformation and the sublimation of the idea of the rule of law, and it is the highest shape of the consciousness of the rule of law. Moreover, the article points out that the spirit of the rule of law has the universality, the national and time characteristic. The naissance and development of the rule of law is the common fruit of human civilization, from the point of view of the trend of development and the state-should-be, the rule of law will become the universal human mode of governance; the spirit of the rule of law has the universality inevitably."Law is the embodiment of the national spirit", the national conditions in different countries are different, the path and mode of the rule of law has own characteristic, and the rule of law under the specific field inevitably receives the profound influence of the national legal cultural tradition. These factors determine that the spirit of the rule of law has a national characteristic inevitably. The rule of law is the category which develops unceasingly. The level of thought and understanding of human beings, which are the subject of the rule of law and the spirit of the rule of law, is determined by the social conditions of the different times, therefore in different times it is sure that human understandings of the essence and the value of the rule of law and so on are different, which determines that the spirit of the rule of law also has the time characteristic inevitably.ChapterⅢmainly analyzes the element of the spirit of the rule of law. Through comparing and analyzing the views of the element of the spirit of the rule of law of Chinese and the Western scholars, the author thinks that the element of the spirit of the rule of law in contemporary China mainly includes the spirit of legal supremacy, the rational spirit, the spirit of equality, the spirit of freedom, the spirit of rights, the spirit of limiting power, the democratic spirit, the spirit of republic, the spirit of fairness and justice, the harmonious spirit, and the spirit of human rights and so on. The author amply analyzes the element of the spirit of the rule of law from the multidimensional point of view. From the time dimension, the rule of law has approximately experienced the liberal rule of law and the democratic rule of law (the positive rule of law) two stages. In the stage of the liberal rule of law, the value of the rule of law mainly includes protecting individual freedom and rights, and the state plays a"night watchman"in the open market. The liberal rule of law is a kind of rule of law of negative freedom, and the element of the spirit of the rule of law mainly includes the spirit of legal supremacy, the rational spirit, the spirit of equality, the spirit of freedom, the spirit of rights, and the spirit of limiting power and the like. In the stage of the democratic rule of law (the positive rule of law), the value of the rule of law mainly includes enlarging democracy, and safeguarding individual freedom and rights in politics, economy, culture, and society and so on. Compared with the liberal rule of law, the element of the spirit of the rule of law has a development, and the democratic spirit, the spirit of fairness and justice, and the spirit of human rights and so on have become the essential integrant of the spirit of the rule of law. From the spatial dimension, nowadays the rule of law mainly includes the socialist rule of law and the capitalist rule of law two kinds of mode. The western capitalist rule of law is based on economic basis of private ownership, the equality, the freedom, the rights, the democracy, and the human rights and so on take the money as a foundation, and the essence of the spirit of the rule of law is capitalist. Because Western capitalist economy, politics, and the culture and so on are quite developed, and the development of the spirit of the rule of law is comparatively mature, but capitalist nature determines the level of the spirit of the rule of law must be limited. Socialist rule of law is based on the economic basis of taking the public ownership system as the main body and the diversified economy ingredient coexisting, and the people are the national masters no matter quantity of property. As the element of the spirit of Chinese socialism rule of law, the spirit of equality, the spirit of freedom, the spirit of rights, the democratic spirit, the spirit of fairness and justice, and the spirit of human rights and so on are worthy of their name, and its essence is socialist. Although in the socialist initial stage, the growth of the spirit of the rule of law in China is relatively slow, looked from the long-term development targets, the spirit of the rule of law of a high level is bound to generate. Moreover, Chinese culture claim collective-based, which emphasizes the collectivism, during protecting individual rights and interests, the rule of law of our country more pays great attention to the harmonious development of the entire society. Therefore, the harmonious spirit is also one of elements of the spirit of Chinese socialism rule of law. As the time spirit of the rule of law, it infiltrates into other factors of the spirit of the rule of law. From the point of view of the system theory, as a system, the spirit of the rule of law is an organic whole. The status and function of each factor of the spirit of the rule of law is different. The spirit of legal supremacy and the rational spirit are the essential layer of the spirit of the rule of law, and they are also the basics of the spirit of the rule of law. The layer of the value of the spirit of the rule of law is the result of running of the essential layer of the spirit of the rule of law. Democracy and republic are the bases of the rule of law, only on the basis of safeguarding deliberative democracy, other values of the rule of law can be achieved. Therefore, the democratic spirit and the spirit of republic are the basic elements of the spirit of the rule of law. As the perfect condition of running of law, the central request of the rule of law is protecting individual freedom and rights, and limiting the power. If there is not the individual freedom and rights, other values of the rule of law can not be achieved. Therefore, the cores of the spirit of the rule of law are the spirit of freedom, the spirit of rights, and the spirit of limiting power. The content of the spirit of the rule of law is developmental, under the different spatial and time background, the spirit of the rule of law embodies vivid space-time characteristic. In Contemporary China, the aim of social development is constructing the socialist harmonious society; the rule of law is the necessary request and the important guarantee for achieving the aim. Thus, the spirit of the rule of law in China embodies the harmonious spirit in the space-time layer. Human beings are the subject of the rule of law, equality, fairness and justice, harmony, and human rights and so on just are the aims of the rule of law, and the ultimate objective of the rule of law is promoting human comprehensive development and consummation. Therefore, the spirit of equality, the spirit of fairness and justice, the harmonious spirit, and the spirit of human rights and the like are the objective elements of the spirit of the rule of law, and the ultimate solicitude of the spirit of the rule of law embodies human comprehensive development and consummation.On the basis of ascertaining the connotation, characteristic and element of the spirit of the rule of law, chapterⅣhackles the evolved process of the spirit of the rule of law in contemporary China. During the long period of time since the founding of People's Republic of China, the ideas of the rule of law are absent, and the spirit of the rule of law can not be discussed. The spirit of the rule of law in contemporary China begins to grow under this background. From the third plenary session of the 11th central committee of CPC to the 15th CPC congress, based on summing up experience and lesson, socialist democracy and rule of law have gradually stepped onto the right path, the will of carrying out democracy and the rule of law is more steady, the thought is further emancipated, citizen's rights consciousness enhances day by day, the human rights ideas starts to awaken, and the ideas of rule by law are gradually formed; Since the 15th CPC congress, the construction of the rule of law in China has created a new stage of development, and the ideas of the rule of law has the qualitative leap. On the basis of considering the national condition, summarizing the experience of our country's construction of rule of law, and making use of the civilization achievement of the world rule of law, the idea of socialist rule of law is put forward and set up initially.ChapterⅤmainly discusses carrying forward and cultivating of the spirit of the rule of law. The spirit of the rule of law is the soul of the rule of law, and the experiences and lessons of the construction of the rule of law and the development condition of the spirit of the rule of law in China determine that carrying forward and cultivating of the spirit of the rule of law has become the primary task. Chinese characteristic socialist rule of law calls for the spirit of Chinese characteristic socialist rule of law. The goals of carrying forward and cultivating of the spirit of the rule of law in China are achieving the sublimation of the spirit of the rule of law from the time spirit to the national spirit, and generating the spirit of Chinese characteristic socialist rule of law which containing the universal, national and time characteristic element of the spirit of the rule of law finally. The spirit of the rule of law has its own growth rule. The spirit of the rule of law, which is both the reflection and the product of the practice of the rule of law, can not leave the practice of the rule of law. The ideas of the rule of law→the idea of the rule of law→the spirit of the rule of law, is the common growth route of the spirit of the rule of law. Of course, the development of the spirit of the rule of law is not the single track. When studying and borrowing the civilization achievement of the developed states, we may adopt the universal elements of the spirit of the rule of law. By carrying forward the spirit of the rule of law actively, which guides and impulses the practice of the rule of law, then promotes giving birth to own spirit of the rule of law. At the same time, the evolution of the spirit of the rule of law is a dynamic process. Once generated, the spirit of the rule of law must become the powerful driving force of the practice of the rule of law, and guides the practice of rule of law to a higher level. In the practice of the rule of law, the new ideas of the rule of law will produces, and gradually develop into a new idea of the rule of law, then become a new spirit of the rule of law. The causes of lack of the spirit of the rule of law in China mainly include: the power corruption and the power abuse abound; the negative effect of the traditional legal culture; the high cost of lawsuit; the effect of law publicity and education is not good. Based on summarizing the rule of the growth of the spirit of the rule of law and exploring the cause of lack of the spirit of the rule of law in China, the dissertation points out the specific paths of carrying forward and cultivating the spirit of Chinese characteristic socialist rule of law include: safeguarding administration according to law and the jurisdiction independence, and supervising the proper exertion of the power actively; thoroughly digging and absorbing the essence of the traditional legal culture, discarding the dross of the traditional legal culture, and adhering to the association of the rule of law and the rule by ethics; taking the measures to reduce the lawsuit cost, and correctly handling the relationship between judicial fair and judicial efficiency; taking the scientific concept of the development as the guidance, and taking up law publicity and education actively. Carrying forward and cultivating of the spirit of the rule of law will be a long and gradual process, and we must make the best possible use of the resources of the world, the national cultural tradition and the time. In order to promote the growth and consummation of the spirit of Chinese characteristic socialist rule of law, we must continuously explore the way of integration of the universal, national and time characteristic elements of the spirit of the rule of law.